Federal and state governments should consider passing laws that forbid smartphones, tablets and other such devices from being “sealed off from law enforcement,” Manhattan District Attorney Cyrus Vance said today in an interview at a cybersecurity conference in New York.

Sure. These entities could "consider" this. And then swiftly discard the idea. There's no good reason why millions of people's data and communications should be made less secure just to make capturing criminals -- a small minority of the population -- easier. There are only law enforcement reasons. And those reasons are specious, at best. Cops have been catching criminals since long before the rise of the cellphone and they'll continue to do so long after default encryption becomes standard operating procedure.

But to hear opponents of Apple's move tell it, encryption-by-default is an unfair impediment to investigative and law enforcement agencies.

“It’s developed into a sort of high-stakes game,” Vance said. “They’ve eliminated accessibility in order to market the product. Now that means we have to figure out how to solve a problem that we didn’t create.”

Vance's portrayal of this decision is dishonest and self-serving, but it's his last sentence that is the most skewed. Law enforcement (along with investigative and national security agencies) did create this problem. They abused their powers to obtain warrantless access to metadata, data, communications, and anything stored locally on the phone. Cops routinely searched phones of those they detained without a warrant, something that was finally curbed by a Supreme Court decison. The NSA, FBI and law enforcement agencies all use the Third Party Doctrine to access call records, cell site location data and anything else that can be easily had without ever approaching a judge. So, they did bring this on themselves. And that's why (as the oft-used quote goes) the "pendulum" has "swung the other way."

It's not marketing. It's a very specific reaction to years of unchecked government power. It's obvious the government can't restrain itself. So, these companies have made it "easier" for the government to refrain from abusing its power by making this decision for them. Sure, there's a limited market for more security, but making it default going forward gains these companies nothing in terms of new customers. It's not an option that's only available to people who buy certain phones or certain service contracts. It's for everyone who buys a phone. Vance echoes the statements of others in his attempt to portray this as a purely mercenary decision but the only thing this does is make him look stupider.

After ticking the mandatory "crimes against children/murderers" emotional-plea checkbox, Vance goes on to cross "public safety" off the list of talking points.

“This is an issue of public safety,” Vance said. “The companies made a conscious decision -- which they marketed -- to make these devices inaccessible. Now it’s our job to figure out how we can do our job in that environment.”

Incredibly, Vance portrays his deployment of every anti-encryption cliche as special and unique, claiming he's "going rogue" by speaking up on the subject. (Because everyone else has been oh so silent...) But there's nothing new being said here. Again, Vance pushes the "greed" angle, but it's his last sentence that's the most ridiculous.

Vance -- and others like him -- aren't "figuring out" how to do their jobs in "this environment." They have no desire to do that. What they want is to change the environment. The new environment doesn't cater to their instant access desires, but rather than deal with the limitations and approach them intelligently, they've chosen to portray encryption-by-default as Google and Apple's new plan to make a ton of money selling smartphones to child molesters and murderers.

They want the laws to change, rather than law enforcement. And all they've offered in support are panic-button-mashing "arguments" and heated hyperbole. The problem is that panic buttons and hyperbole are effective legislative mobilizers. As bad as Vance's ideas are, there's a good chance he'll be able to find a number of politicians that agree with him. In all likelihood, the environment will be forced to adapt to law enforcement, rather than the other way around.

Re: Re:

Well right from their desks they can track down those among them who were part of Jeffrey Epstein's deals. Seems some lines were crossed.

And they might from those desks send him warnings that he a Class 3 predator is living less than 1000' from a school in NYC. He needs to be warned that he is therefore breaking the law and must move out rather soon.

On a side note

Just a thought but does advocating for this at some point in the future potentially make him liable (culpable?) for something like treason? I mean has been mentioned this guy is publicly advocating for backdooring security mechanisms.

The bad guys now know with 100% certainty there will be exploitable means to gain access systems, so in effect he is aiding and abetting the enemy.

Re: On a side note

The bad guys now know with 100% certainty there will be exploitable means to gain access systems, so in effect he is aiding and abetting the enemy.

IANAL but I'm pretty sure there has to be a specific enemy that a person is aiding with particular actions to rise to the level of treason. Actions that may at some indefinite time in the future be beneficial to an unspecified enemy would not qualify.

Re: Tax Evasion

Manning was convicted under a different set of laws entirely (the UCMJ) and so is not an analogous thing. But her convictions were for espionage, theft and fraud. She was found not guilty of the charge of aiding and abetting the enemy.

Three, apparently obscene, words...

'The companies made a conscious decision -- which they marketed -- to make these devices inaccessible.'

...

'... and other such devices from being “sealed off from law enforcement'

Add just three words to the above, and the argument becomes an honest one. The statements, honest. Just three, tiny, yet incredibly important words.

'Without a warrant'

Adding encryption to a phone or tablet does make it 'inaccessible' to law enforcement... without a warrant.

Making encryption mandatory on all new devices does 'seal them off' from law enforcement... without a warrant.

Nothing has changed if they get a warrant before browsing. What they are throwing fits about is not being unable to search phones and tablets and other electronic devices, because they can still do all of that. No, what they are throwing a tantrum about is the fact that encryption means they can no longer do it unsupervised. They can no longer look through someone's phone without their knowledge, and without having to provide solid evidence for why they should be allowed to do so to a judge.

If they want to start being honest, and admit that nothing has changed if they are willing to follow the law, then we might be able to have a reasonable conversation. It likely won't go in their favor, due to the reason encryption has entered the public eye, but we could at least have a reasonable discussion regarding the balance between personal privacy and public safety.

Until then though, until that happens, then they are doing nothing less than acting the part of spoiled children who, upon losing their favorite toy due to mis-using it, are now throwing childish tantrums in an attempt to get it back, lashing out and blaming everyone but themselves for the loss of their 'toy'.

Re: Three, apparently obscene, words...

Is that still accurate. Aren't we still fighting a battle on the legality of a judge forcing a suspect into revealing his or her password? I'm against what the gov is trying to do but I don't think a simple warrant fixes it. I use my phone for nothing but phone things and even under warrant I wouldn't reveal my password because I have the right to not testify against myself.

Re: Re: Three, apparently obscene, words...

Forcing someone to hand over their password, often under threat of 'contempt of court'(a 'crime' which, and this is very important, has no maximum jail sentence) is indeed a problem, but at least in a sense, and in this case, a lesser one.

Being forced to hand over incriminating evidence by pretending that providing the 'key' to unlock it has no connection to said evidence is a problem, and one that needs to be dealt with, but at least if it reaches that point, then the police have found themselves in court. They've made their case as to why they believe they are justified in examining the contents of your device, and most importantly, their arguments can be challenged. It may be after the fact, after the hearing, and at the point where you are ordered to provide your password, but by going before a judge, they have presented their reasoning in a semi-public format, allowing those reasons to be challenged by the owner of the device.

If they don't have to go before a judge though? Then they can do pretty much whatever they want, and if you're lucky you'll know that they rooted through your electronic possessions. Technically there are laws against that sort of 'casual browsing', and the SC even ruled against it, but police... well, they don't really pay much attention to those 'law' things if they get in the way of what they want to do, which is where encryption comes into play, as they can't just 'ignore' that.

Re: Three, apparently obscene, words...

Nice catch and well stated.It seems law enforcement seeks to circumvent the law (or break it without penalty) while expecting us to uphold the law. Law enforcement should be held to a higher standard then the average citizen. We are not bound by oath while they are.

"There ought to be a law"

Federal and state governments should consider passing laws that forbid smartphones, tablets and other such devices from being “sealed off from law enforcement,”

Well, guess what. There is a law, an actual constitutional right in the highest law of the land to safety in your assets including your communications, safety from being accessed by state authorities without warrant.

If the government did not constantly be in breach of this law, encryption would not be an issue.

If you don't want people to start taking care of their constitutional rights themselves, stop breaching them.

Or you leave law-heeding citizens no recourse but to revert to protecting themselves with technical measures from the crimes of their government.

New Law

Re: New Law

there is one... its called survival of the fittest.

But too many people are shielding the very idiots you want to get rid of so the law of equilibrium takes effect instead.

The more stupid people allowed to survive... the more stupid people that can vote in stupid people. And when there is a whole lot of stupid... its really difficult for the non-stupid to improve things.

Re: Far far worse

It's not surprising to see sarcasm from someone who never thinks about how many crimes happen because doors have locks. If we get rid of locks on people's doors, think of how many crimes can be stopped. Criminals will be denied an obvious, convenient, and relatively effective deterrent from law enforcement.

I know that the raging Libertarians at Techdirt have a problem with the militarization of police, but it is only a response to the tools and capabilities that criminals have. We wouldn't need armored cars if criminals didn't have access to guns. We wouldn't need to learn how to physically restrain people if they complied with out requests. We wouldn't need things like breaching rounds, crowbars, lock pick guns, or portable rams if doors could be accessable to law enforcement.

Stop thinking about how good people use door locks. That's not what worries and frustrates us. What keeps us up at night is the thought of the violence done to innocent people because bad people now have tools available to them that serve to enable their activites.

All it takes for evil to prevail is for good men to be unable to turn the knob.

Re: Re: Re: Far far worse

I am saying that "free society" is always tempered by the need to people to be safe in their own homes.

I think it is a given that genuine freedom to do exactly what one wants whenever they want to do it is impractical and dangerous. That's the general point for laws and government.

In this scenario, we are discussing a convenient and effective deterrent from law enforcement doing their jobs (encryption). Worse than being a deterrent for law enforcement, it's an enabler for criminals. If people want to be safe, at some point there has to be trust with the people who are being tasked to help keep them safe.

Trust that when an officer or law enforcement in general needs something, its for everyone's safety and well being, and requires compliance.

Trust that success is based on more than free society, but also the freedom and discretion of those tasked to protect it.

There's this chesnut that freedom isn't free. That cost will only be higher when criminals have all of the advantages.

Re: Re: Re: Re: Far far worse

Re: Re: Re: Re: Re: Far far worse

Guilty as charged!

The main reason I decided to write the posts could be chalked up to a moment of realization (aided by sleep deprivation).

When law enforcement opposes things like encryption, its because they're essentially thinking along the lines I typed. They're blind to the concept the evil in tools is how you use them, and that the world would be a better place if you would just shut up, let them do whatever they want, and trust them that they'll never make a mistake or act out malice.

"Are we going to allow a means of communications which it simply isn't possible to read?" Cameron said Monday while campaigning, in reference to apps such as WhatsApp, Snapchat, and other encrypted services. "My answer to that question is: 'No, we must not.'"

Re:

No, we need people like this prosecutor to shut the fuck up. He doesn't actually care about justice - he's not paid to. He just wants a pithy soundbite, rather than actually fixing the issues within his jurisdiction.

Re:

I didn't see the phrase "fight encryption" anywhere in the quote, so I followed to the Bloomberg link, where that phrase also appears only in the headline. I would have been much more concerned if the DA had said "fight encryption" but thankfully not.

Re:

Insisting that a back door is inserted is almost the same as saying no encryption. Give wide access to that back door to the police will give the same access to the criminals, as t is guaranteed that it will leak to the criminals sooner rather than latter. The end result will be that the encryption is only protection against those who do not pose a threat to privacy, so insisting on a back door is the same as fighting encryption.

Re: Re:

I know they do not want encryption and are undermining it, but to state they are "fighting encryption" when they are also saying "fighting terrorism" and "fighting drugs" puts the encryption issue in a whole different light. It would be as if they are saying encryption is terrorism.

According to the NSA...

Re: Re: Re:

"It would be as if they are saying encryption is terrorism."

They aren't saying that. They're saying that strong encryption is a tool that only terrorists need. That's not only radically incorrect, it's only a half step from saying that if you use strong crypto, you must be a terrorist.

Everybody chime in

No seriously. With just the FBI director talking authoritively about this threat it makes it much more likely that the average person will eat the FUD. If you have government agencies crawling out from under their rocks chiming in you end up in a lady doth protest too much situation. It's more likely to make the average person and not just the tech saavy question the legitimacy of the threats and the motives of the messengers.

what he means is there needs, from his point of view, to be more laws taking away our freedom and privacy! i'll bet he and others like him wont be so keen when that applies to him, especially if it is over something that he would much rather keep hidden!what needs to happen more than this is for a full scale assault on those who are trying to remove our freedom and privacy by means of terror and violence and that assault needs to come from all quarters of the free, democratic world!!

Re: The nature of police work

Certainly not for the FBI! Their modus opporendi seems to be roping in schmucks into preset up crimes. I'd like to see one of their "plant fake bomb" cases blow up on them when the con catches onto it being fake and replace it with a real bomb. Putting enough egg on their face could end that practice

Re: Re: The nature of police work

I'd like to see one of their "plant fake bomb" cases blow up on them when the con catches onto it being fake and replace it with a real bomb.

They only set up people who would never have the ability to obtain actual weapons, probably for exactly that reason. If you recruit dangerous people, suddenly police work seems... well, dangerous. Much safer to just pick up someone who would never accomplish anything harmful on their own.

Re: Same complaints as before

But this one's a whole different ball game, the amount of info these devices could provide......this is not one we must lose..........its the reason their fighting so hard, even in the face of looking like the obvious bad guys.........if they give themselves this authority, the level of control they get over the individual would be unprecedented........i.e. never happened before at this level.........

Hoisting on petards

Ok Mr. Prosecutor. If this is going to be the case, then you will naturally make all of your personal and private communications (not to mention job-related stuff) available online for us, your employers, to review, correct?

No new law needed, older law prevails...

You see, we have this thing called the Constitution which prevents Congress from passing any law that attempts to circumvent the Constitutional right to privacy.

Any attempts by outsiders to push Congress to perform this illegal act is an action of treason to the citizens of the United States and will be dealt with accordingly.

So go ahead, yell at the top of your lungs. We'll be taking down your names, arresting you and trying you for the treason you are committing in attempting to circumvent the constitution.

Congress-critters beware, don't fall for these criminal delusions or your names will be added to the list of people to be arrested, tried and convicted of treason against the citizens of the United States.

Note that 90% of you are already on that list for your treasonous Patriot-Act which violates the constitution, and 95% of the Executive branch is there as well for their own illegal, treasonous acts against the citizenry of this country.

Re: 10 years ago

They did their job by listening to every phone call, sms and email with whatever backdoor or government access they had. Does Echolon ring a bell? Just that with smartphones and especially in the last years it has become easier to encrypt communication for normal people.

And another factor in my opinion is that they started with a card deck of terrorists now they have what? over 1 million people on the list? So the received threat seems to have grown quite a bit, some might call it paranoia.

Additional layer of disingenuous

Now that means we have to figure out how to solve a problem that we didn’t create.

While Tim is right that they did, in fact, create this problem that isn't the thing that I thought of first when I read this. What I thought of first is that this statement is disingenuous because it implies that some kind of societal or general problem was created and now the poor police are being called on to solve it. Which further implies that the police have some sort of right to have backdoor access.

That's untrue. There is no societal or general problem with the encryption. The police have no inherent right to have backdoor access. This is a "problem" for the police and the police alone, and the problem is one of entitlement. The police have simply become used to being able to access anything they want and have come to think of it as an inviolable right.

That is the problem, but it's a problem with law enforcement, not technology.

Re: Re: Re: Additional layer of disingenuous

I made a similar comment such as this in the past and your response was that it was a stupid remark and that Government was necessary. I am not attacking, just inquiring if you have changed your mind. I cannot recall the specific article anymore. If I have you pegged wrong then I do apologize.

Since I am an AC you are at a disadvantage as to which insane netizen you are dealing with, but I have already seen that techdirt has a system in place to mark and deal with keywords. This will encourage me to remain anon because the capacity for humankind and machines to take things way out of context is quite vast.

Re: Re: Re: Re: Additional layer of disingenuous

"your response was that it was a stupid remark and that Government was necessary."

My stance is that government is inevitable. That's a bit different than necessary. Governmental systems are a part of human psychology. We are pack animals and will always gather into groups and act as a group. Once you start doing that, then you have a government.

Thus, my stance is not to determine if government as a concept is good or bad -- that's a purely academic argument, since we'll have government regardless. My stance is that since government is inevitable, the only reasonable thing to do is to make it the best government possible.

Re: Re: Re: Re: Re: Additional layer of disingenuous

Oh, and I seriously doubt that I called any comment you made "stupid". That's not my style. Although I do (rarely) get my dander up and let an insult slip out, I make it a point to avoid making personal attacks at all.

Re:

We just need to enforce the Constitution the way it was meant to be enforced.

Any attempts by ANYONE to abridge those rights is tantamount to treason (as in treason against the citizens of the United States because of the harm it does to the citizens) and as such those making these attempts should be arrested, tried, convicted and executed for their follies.

Re: Re:

But you won't otherwise most americans would have overthrown their treasonous government decades ago. people will just sit by complacently until something affects them personally then they care about it. But still do fuck all about it.

Just be thankful their efforts to disarm americans is getting more resistance than people taking them to task for breaking constitutional amendments when it pleases them.

It's all about legitimizing the Total Police Surveillance State, "We can't protect you, if we can't eavesdrop on and peek on you 24/7." The end will be when they demand cameras and mikes in every room of every home and apartment, and every business in the country, "So we can protect you."

"I know a lot of people are concerned about Big Brother, but my response to that is, if you are not doing anything wrong, why should you worry about it?" Chief Harold Hurtt told reporters Wednesday at a regular briefing.

As reported on Schneier's blog in 2006. Hurtt jumped the gun, now it's back to boil the frog slowly.

Re:

"I know a lot of people are concerned about Big Brother, but my response to that is, if you are not doing anything wrong, why should you worry about it?" Chief Harold Hurtt told reporters Wednesday at a regular briefing.

Re:

"I know a lot of people are concerned about Big Brother, but my response to that is, if you are not doing anything wrong, why should you worry about it?" Chief Harold Hurtt told reporters Wednesday at a regular briefing.

Just once, just once, I want a reporter to hit back on that idea, and refuse to accept any dodges. Anyone who makes the 'if you've done nothing wrong...' argument should be immediately asked to provide their address, phone number, email address and password, and anything else the one asking the question can think of, in order to show that the one making the claim really believes in what they're saying.

Don't allow any dodges, don't let them ignore the question and move on, but demand that they either provide the personal information that they are demanding from others, or admit that their logic is heavily flawed.

Sadly, the press is too spineless and tamed these days to ever consider something like this, but just once, it would be nice to see it...

"and other such devices"....

Hello Cory Doctorow. Once again we have an excellent example of how people really don't understand modern technology. I don't have a phone in my pocket, I have a general purpose computer that happens to have a phone application running on it. Does this mean that encrypted-by-default laptops would be illegal? how about desktops? What if your company issues you one? What if you take a pocket sized super-computer and plug it into a full size keyboard and screen? Car GPS computers? Car radios? Your home cable modem?

We are increasingly surrounded by more and more of these "other such devices", pretty soon that's all we will have. Arguing that law enforcement has a right to snoop in every piece of technology I own without a warrant is abhorrent.

This is the step on the road to every electrical equipment you buy being an extension of their capability to spy

As far as im concerned, encryption is a minimum, i still expect stuff like hardening of the os systems, detection of hacking attempts made, released on masse, os's seperating the security section of their os, so thats its easy to release and implement security patches on any version of OS........im looking out for that open source OS, built from the ground up with security and privacy in mind.........oh and a trustworthy hardware manufacture.........oh, and an open source phone modem chip that is'nt propriety and apparently gives any phone companies to bypass anything, if i remember rightly, i think encryption too........theres a long way too go.......if google/apple stops at encryption, then i know their not serious

If they keep passing laws that only affect those outside their circles, and the laws are'nt leashing themselves........what does that make them, those that pass laws under the guise of morality, yet exclude themselves from such laws......all the while ignoring past laws that get in their almighty way

Tim, makes some excellent points. Particularly about intelligence agencies and law enforcement causing this encryption "problem". His point about backdoors making us less safe and secure is absolutely correct. Next thing you know, Chine will be demanding backdoors too. Then Russia and finally Iran. Does that make anyone feel safe?

Yes, encryption is a public safety issue. That's precisely why we need more unbreakable encryption to keep us safe and secure, not backdoored encryption for foreign governments to exploit. Strong encryption with no backdoors is vital to America's national security and economic interests.

Re:

Strong encryption with no backdoors is vital to America's national security and economic interests.

It is vital to the worlds interests, along with secure variants of TOR, as it is enables people to talk to each other regardless of what their governments want. Enabling the worlds population to converse with each other, without the interference of politicians is the best way of avoiding wars, and sharing the knowledge and information that enables people to solve their own problems without having to rely on big government and business.

Re: Re:

I think that you have just listed the 3 primary reasons why NO "GOVERNMENT" on earth wants to allow encryption to get into public hands.

1. Encryption enables people to talk to each other regardless of what their governments want.

2. Encryption enables the worlds population to converse with each other, without the interference of politicians and thus avoid wars.

3. Encryption enables the sharing of knowledge and information that lets people solve their own problems without having to rely on big government and big business.

There is absolutely no upside in any of that for the greedy control freaks that inhabit the halls of power, or the billionaires who see the world as their own private feedstock for personal unlimited aggrandizement.

Ninteen Eighty-Four

As has been noted countless times within the Techdirt comments, Orwell suffered from an imagination limited by his era and culture when considering the engines of control and surveillance that are being applied to the public.